Rejection of a claim for non-payment of fees

In a recent case decided by the Employment Appeal Tribunal the strict time limits in the Employment Tribunal were once again under review, this time in respect of a failure by an employee to pay the required fee on time.

The Law

Section 111 of the Employment Rights Act 1996 provides:

(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal –

(a) before the end of the period of three months beginning with the effective date of termination, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

The Employment Tribunal Rules state that a ‘claim shall be started by presenting a completed claim form.’

Since the introduction of fees in the Employment Tribunal all claims must be accompanied by the fee payment or a fee remission.

Those people on a low income or in receipt of benefits can apply for a fee remission which is assessed and if the remission is granted they are notified. If the remission is not granted the Tribunal will send a Notice to Pay. If the fee is not paid within the required time period stated in the notice the claim will be rejected.

The Facts

The employee in the case Ms Gannon was employed by the Software Box Limited until her employment was terminated on the 4th October 2013.

Ms Gannon sent her claim form to the Employment Tribunal along with an application for remission of fees on the 24th December 2013. Ms Gannon’s time limit for making a claim was the 3rd January 2013.

All applications for fee remission are sent to a central processing unit (CPU) in Leicester and Ms Gannon’s application was not received by the CPU. Ms Gannon was not aware of this until the 13th February 2014 and she submitted a second application for fee remission.

On the 25th February 2014 Ms Gannon’s application for remission was rejected and the letter stated that a fee was payable and that a Notice to Pay was enclosed, however the notice had not been included. A second letter with a Notice was sent to Ms Gannon’s legal representative, however Ms Gannon was no longer represented as she could not afford to pay the costs for advice.

On the 4th April 2014 Ms Gannon contacted the CPU but by this time the time for payment had passed and her claim rejected. Ms Gannon immediately borrowed money and resubmitted her claim with the fee.

It was also noted that during the period in question Ms Gannon was suffering with alcohol dependency syndrome, together with anxiety and depression.

The Employment Tribunal had to consider if it was reasonably practicable for Ms Gannon’s second claim to have been issued within time.

The Judge decided in Ms Gannon’s favour and allowed her claim to proceed even though it was presented to the Tribunal over 3 months late.

The reasons for the Judge’s decision to allow the claim out of time included:

• Miss Gannon believed that she had validly presented a claim within time on the 24th December 2013;
• The combination of her medical condition, the fees regime and the absence of the correct documents (Notice to Pay) meant that it had not been reasonably practicable for her to have presented her claim in time;
• Ms Gannon had taken action immediately on realising that her initial claim had been rejected.

Software Box appealed against this decision arguing that the judge had made an error in the conclusion as Ms Gannon had, in fact, presented her claim within time in the first place and there was no means of remedying the rejection of that claim by presenting a further claim out of time.

The Decision

The Employment Appeal Tribunal allowed the Employer’s appeal and referred the case back to the Employment Tribunal to be decided again.

The reason for allowing the appeal was that the Appeal Tribunal decided that the Judge had made an error in how Ms Gannon’s case was considered and insufficient consideration was given to whether it would have been reasonably practicable for her to make her claim within time.

The Employment Appeal Tribunal did also address an issue which had not previously been raised and that was whether the original claim could have continued with an application to extend time for the fee payment.

Her original claim had been presented in time and the Employment Tribunal rules state that once a claim has been presented, “what can happen to it is not a process of acceptance but only a process of rejection or determination by one of the various means…..described.”

The correct course of action would be for the Tribunal to consider if the time limit for the payment of the fee should be extended.

Points to note

This case bring up some interesting issues about time limits and the effect of the new fee regime.

It also illustrates that the Employment Tribunal and Employment Appeal Tribunal are likely to be more accommodating in situations where there have been administrative errors and issues of rejection merely relating to the fee payment.

It should also be noted that this case was before the introduction of ACAS Early Conciliation where time limits are extended for the period that conciliation is taking place.

What action do you need to take?

1. If you receive any letters, forms or notifications from the Employment Tribunal you should act immediately to deal with them;
2. If you are defending a case you should be proactive in contacting the Tribunal Office about any paperwork, applications or forms;
3. If you find yourself involved in an Employment Tribunal case contact me for a free initial discussion – 01983 89700, 023 8098 2006 or email alison@realemeploymentlawadvice.co.uk

Case Name

Software Box Ltd v Gannon  – Employment Appeal Tribunal